KUALA LUMPUR: Thousands are denied the right to justice because of ouster clauses, say law experts.

That is why they are suggesting the setting up of an arbitration body to hear appeals against any decision that involves the use of the ouster clause.

An ouster clause relates to a provision in an Act of Parliament that overrides the authority of the court.

Bar Council vice-president Ragunath Kesavan said access to justice was a fundamental right.

"Anyone aggrieved at a decision of a minister or an administrative body or tribunal must have the right to the court.

"This is because the final arbiter between the state and the individual is the court.

"If you have a situation where you stipulate by an Act of Parliament that a minister's decision is final, you're removing a fundamental democratic right where the aggrieved individual has no access to challenge the decision of the minister."

Ragunath said a decision by a minister or administrative body must comply with the rules of natural justice.

"These are rights protected by the court, so an aggrieved individual must have the right to challenge a decision which does not comply with any of these rules of natural justice."

As the law stands, he says, there is a remedy of habeas corpus in instances where there is an ouster clause.

However, said Ragunath, courts had taken a very conservative view of their powers to review if it was related to the ISA.

"Their position, basically, is that if it relates to procedure they will allow the review.

"But they have not gone beyond that. The courts have been reluctant to review the decision of a minister and, if it is a decision based on national security, it's a blanket 'no' from the courts."

Ragunathan said there had been instances, where ISA was not involved, that the courts had examined the issue of national security.

"The higher courts have taken a much more progressive view of national security.

"There have been instances where they have rejected the reason for national security forwarded by the minister.

"For instance, in the case of Parti Sosialis Malaysia chairman Dr Mohd Nasir Hashim for the registration of his party, one reason forwarded was national security. The court rejected that ground."

(This matter came about after the Registrar of Societies, on Jan 27, 1999, rejected PSM's application to be registered as a national political party.)

An appeal to the home minister was turned down. On Sept 23, 1999, Dr Nasir filed an application for judicial review at the High Court in Kuala Lumpur.

He wanted the minister's decision quashed and the party registered.

However, the home minister in his affidavit said the party had been officially notified of the rejection, and that the party, based on police feedback, was a threat to national security.

On Jan 13, 2003, High Court judge Datuk Abdul Hamid Said dismissed PSM's application, maintaining that national security was the responsibility of the Executive and did not rest with the court.

The Court of Appeal on Aug 16 2006 upheld the High Court's decision but rejected the national security argument.

It upheld the decision based on the assumption that the party had been registered at Selangor level, which had never happened at all.

"It would seem that by merely stating that it is a threat to national security, in cases other than involving the ISA, the courts are a bit more progressive," said Ragunath.

"They seem to be able to move forward to examine the reason.

"However, in ISA cases, there seems to be a blanket refusal to review."

Former Universiti Malaya faculty of law dean Datuk Dr Sothi Rachagan suggested the setting up of a special body like the Australian Administrative Appeals Tribunal (AAT) or the State Administrative Tribunal (SAT) of Western Australia

The AAT can be established as a special division of the court to provide independent merit reviews of administrative decisions.

The SAT is an additional layer which takes an informal, flexible and transparent approach to the review of administrative decisions before they are reviewed by the court.

"It (SAT) is not a court. Therefore, strict rules of evidence do not apply. It encourages the resolution of disputes through mediation."

The problem with ouster clauses, Sothi said, was that most decisions were not taken by those at the top but by a subordinate on his behalf.

"Thousands of decisions are made daily and the minister or top-level officer cannot be making all of them, so this is delegated to officers under him.

"The ouster clause then prohibits this decision from being questioned. There is no accountability for the decision made."

Ragunath agreed. "We should look at something like that (AAT or SAT). Many administrative decisions are made daily so there must be a situation where you have access to justice."

At present, said Ragunath, a decision of an administrative body could only be challenged by a judicial review application in court.

"Even if there is no ouster clause, your only remedy against a decision by a minister or administrative body is by judicial review.

"It's not easy and it's also an expensive process. For judicial review, you also need the leave of the court. For example, you can deny a person a passport with no reason provided and the person has no recourse to the courts."

In some instances, said Sothi, a person could appeal to the minister for a review of the decision. However, this process could take ages to be resolved.

"When the decision comes, the result is usually the minister concurring with the decision of his officers."

The Human Rights Commission of Malaysia (Suhakam), in its 2007 annual report, proposed that the government repeal the arbitrary ouster clause, particularly in the Internal Security Act (ISA) 1960 and in other provisions generally.

"Suhakam is concerned that judicial review is ousted in quite a number of instances, including habeas corpus challenges.

"An ouster clause is contrary to the fundamental concept of human rights -- an aggrieved person should have access to a court of law," said the report.

It further stated that detention without trial must be subject to judicial review and that those who authorise detention should be held accountable.

"The current practice of adopting ouster clauses undermines the right to justice and the right to a fair trial. The ouster clause is now being used increasingly in laws which deal with non-security matters.

"For example, the Water Services Industry Act 2006 states that any decision by the minister shall be final and conclusive, and that such decisions shall not be challenged and appealed," the report stated.

ADMINISTRATIVE APPEALS TRIBUNAL

THE Administrative Appeals Tribunal (AAT) provides independent review of a wide range of administrative decisions made by the Australian government and some non-government bodies.

It aims to provide fair, impartial, high quality and prompt review with as little formality and technicality as possible. Both individuals and government agencies use the services of the AAT.

The tribunal is an independent body that reviews a wide range of administrative decisions made by government ministers, officials, authorities and other tribunals.

The tribunal can also review administrative decisions made by state government and non-government bodies in limited circumstances.

On the facts before it, the tribunal decides whether the correct -- or, in a discretionary area, the preferable -- decision has been made in accordance with the applicable law. It will affirm, vary or set aside the decision under review.

The tribunal is not bound by the rules of evidence and can inform itself in any manner it considers appropriate.

The tribunal consists of a president, other presidential members (comprising judges and deputy presidents), senior members and members.

The president has established a number of committees comprising tribunal members and senior staff to provide advice and assistance in specific areas.

Kuala Lumpur - The former de facto law minister who quit in protest over recent Internal Security Act (ISA) arrests has criticised his own party, Umno, for contributing to racial tension in Malaysia.

Datuk Zaid Ibrahim, who is rumoured to be thinking of leaving the ruling party, blamed a 'culture of fear' for the country's race relation problems.

He said that 'those with political power' had left race relations a sensitive issue even after 50 years of independence.

'When we face an issue, we cannot discuss it, we cannot debate it. We only use fear or we take to the streets. That is not the way things are done in a mature society,' he said.

The former minister in the Prime Minister's Department aired his views in an interview with the Chinese-language Sin Chew Daily, his most extensive since he resigned over recent arrests under the ISA.

The interview also came soon after Mr Zaid wrote an open letter to Prime Minister Abdullah Badawi arguing for the Act to be repealed.

In it, he accused his party of using race politics to win support.

'Umno feels that it is a party needed by the Malays. Umno leaders keep telling the Malays that they are constantly in danger and therefore need Umno,' he was quoted as saying by online news portal The Malaysian Insider.

'They always feel that only they know what is good for the Malays.'

Calling for more open debate on race issues, he said it was no longer necessary for 'one party to represent one race' anymore.

Mr Zaid himself has been at the centre of speculation that he would leave Umno for the opposition.

He did not comment on this in the Sin Chew Daily interview, but appeared to hint at it when speaking to the New Straits Times.

'I have given 20 years of my political life (to Umno) and I have got into a lot of difficulties because of my views, and not that I was disloyal,' he was quoted as saying.

'I have been suspended from the party for nothing and the latest, disqualified from running for (the Kota Baru) division election.

NOT J.B. Jeyaretnam the opposition politician but JBJ the loving husband, father and grandfather.

In an emotional funeral service at St Andrew's Cathedral on Saturday, his sons - Kenneth and Philip - paid tribute to a side of their father's that only they knew.

Their eulogies left many of the 600 friends, family, opposition politicians and activists packed into the church teary-eyed.

Mr Jeyaretnam died of heart failure on Tuesday, Sept 30. He was 82.

His elder son, Kenneth, 49, spoke first and talked about his father's devotion to the family.

He remembered building a pirate ship out of an old mattress when he was younger and how his father gamely played along.

He recalled a letter from his father saying that he was so excited to hear that he had got a first class honours degree in Cambridge university that he could not sleep.

He also remembered the family tradition of going to Robinsons to pick out a Christmas gift, a habit Mr Jeyaretnam kept up even when bankrupt.

'He always insisted on accompanying Jared to Robinsons on Christmas to choose him a present, a trip I remember taking with him from my own childhood,' he said, referring to his 11-year-old son.

'Over the past week people have asked me how it felt to have a father who put politics first and family second. The answer to this question is I don't know, because my father put his family first always,' he said.

Mr Philip Jeyaretnam, 44, also spoke on the lesser known aspects of his father's life, such as how he got into trouble in school in Muar, how dedicated he was to his faith and how devoted he was to his wife.

Mr JBJ had met his British wife, Margaret Walker, while studying law in London and she had campaigned with him as he tried to win a parliamentary seat. She died in 1980 of cancer, just one year before he won the Anson by-election and got elected an MP.

'Her memory stayed with him and kept him going in his darkest moments,' said Mr Philip Jeyaretnam.

The body was later cremated in Mandai. He leaves behind his two sons and four grandchildren.

Least Malaysians realise that the Ministry of Defense is currently undergoing negotiations with Eurocopter Malaysia Sdn Bhd for its RMAF’s Nuri replacement programme.

To the surprise of many, Defense Minister Datuk Seri Abdullah Ahmad Badawi informed that the Ministry had already sent Eurocopter a Letter of Intent (LOI). When asked why Eurocopter was selected, Datuk Seri Abdullah informed that his Ministry would have “considered all the necessary specifications in the helicopters” before making a decision, but declined to elaborate further.

But what Datuk Seri Abdullah failed to disclose Malaysians was that, Kamaluddin Abdullah, the son of Prime Minister Datuk Seri Abdullah is the 'secret agent' for Eurocopter while Kamaluddin is trying to win the bid to lease helicopter to Police DiRaja Malaysia too.

The Eurocopter deal will mean Kamaluddin will get RM250 Million a year for the next 30 years but to finalise this deal, Datuk Seri Abdullah would need at least another 3 months.

It was further reported that Rosmah paid PM Datuk Seri Abdullah RM200 million from the commission of the submarine deal where Mongolian beauty, Altantunya Shariibuu, who was murdered by C4 was involved. But however, Datuk Seri Abdullah Ahmad Badawi denies he ever received RM200 Million from the total of half a billion Ringgit commission that were allegedly Razak Baginda received from the submarine deal.

In another report it was revealed that the 'missing' private investigator P Balasubramaniam, who had retracted suddenly his Statutory Declaration which implicated that Datuk Seri Najib knew and had an intimate affair with her and that Rosmah was also present during the place of murder where C4 was used, was met by Rosmah in the British Isle few days after the private eye went missing and paid Bala RM5 Million. To check the reliability of this fact, Malaysians in certain places can check on the validity of the timing to ensure that Rosmah was actually somewhere in the British Isle during the few days after the disappearance of Mr. Bala. Bala and his family are currently seeking Indian citizenships to avoid problems.

If these information could be confirmed to be true then we, Malaysians have been really conned and lied by these two top leaders - Datuk Seri Abdullah Ahmad Badawi and Datuk Seri Mohd Najib Tun Razak.

(NST) KOTA BARU: Datuk Zaid Ibrahim, who resigned as minister in the Prime Minister's Department last month, may be changing his mind about not leaving Umno. His reason is that he does not see a future for him in the party.

"I have given 20 years of my political life (to Umno) and I have got into a lot of difficulties because of my views and not that I was disloyal.

"I have always had different views on many things previously and today.

"I have been suspended from the party for nothing and now disqualified from running for (the Kota Baru) division election. "So what do you want me to do if you are in my position?" Zaid said at his house in Pasir Hor here yesterday.

He tendered his resignation in mid-September over the government's use of the Internal Security Act on three individuals, including DAP stalwart Teresa Kok and blogger Raja Petra Kamaruddin but said he would not quit the party.

On reports that he had been courted by Parti Keadilan Rakyat and met its adviser Datuk Seri Anwar Ibrahim, he said he had met Anwar and Kelantan Menteri Besar Datuk Nik Aziz Nik Mat as friends.

"I met Nik Aziz on Friday to wish him Selamat Hari Raya and we spoke about national issues, but did not touch on personal things."

(NST) KUALA TERENGGANU: The Pas chief said the action by the the Hindu Rights Action Force (Hindraf) at the prime minister's and cabinet's Hari Raya open house on Wednesday was part and parcel of democracy. Datuk Seri Abdul Hadi Awang said it signaled a change in the democratic practices in the country that should be viewed positively.

"I don't think it was rude. That's democracy. In the United States, people demonstrate in front of the White House. It's not like they caused a commotion or started fighting," he said after the party's Hari Raya gathering at the Tarbiyyah headquarters yesterday.

In the incident on the first day of Hari Raya, Hindraf supporters went to the open house at the Putra World Trade Centre and presented a card to Prime Minister Datuk Seri Abdullah Ahmad Badawi asking him to release the organization's leaders detained under the Internal Security Act.

The card was delivered by Vwaishnnavi, the 5-year-old daughter of Hindraf leader in exile, P. Waythamoorthy. The group was led by Waythamoorthy's wife, K. Shanti. About 20 bloggers also turned up at the open house, wearing T-shirts bearing the slogans "No to ISA" and "Free RPK", referring to the two-year detention order on Malaysia Today editor Raja Petra Kamaruddin.

Both groups told journalists their sole intention was to send a message to Abdullah. They have been condemned for being "intimidating, disrespectful and inappropriate", with Unity, Culture, Arts and Heritage Minister Datuk Shafie Apdal saying he would raise the matter in cabinet.

In Pasir Mas, independent MP Datuk Ibrahim Ali called on political parties and non-governmental organizations to stop pressuring the government to release the Hindraf leaders.

He said MIC president Datuk Seri S. Samy Vellu and Hindraf should not get involved and let the government do its job.

"If the detainees are released following political interference, it will confirm allegations the ISA was being misused. Samy Vellu was a minister and he should know that the ISA is under the minister of home affairs. Even the prime minister cannot interfere."

Ibrahim was speaking at his Hari Raya open house at the Pasir Mas district hall. More than 5,000 constituents attended the event.

He warned that if Hindraf and other NGOs do not stop the pressure, he would use the Pertubuhan Pribumi Perkasa Negara (Perkasa), which he heads, to counter their action.

"If these parties continue, we will organise a demonstration to show our displeasure. We are ready to fight off any interference in the administration of the country."

KOTA KINABALU: Barisan Nasional has to change to meet the aspirations of the people or be prepared for the people to change the coalition, Deputy Prime Minister Datuk Seri Najib Tun Razak said.

The March general election showed that the coalition must make reforms and implement policies to meet the expectations of the people, he said.

“It is a clear message that Barisan needs to be proactive to meet the people’s needs and reforms are already taking place as announced by the Prime Minister,” Najib told a Sabah Barisan Hari Raya gathering last night.

“We will continue to be sensitive and open to the needs of the people,” he said, adding that Barisan was still relevant and could deliver the change the people expected.

“If we don’t have the courage to change then people will change us,” he said.

Najib said that among steps needed to be taken were to ensure that the country’s wealth was distributed fairly to all regions and people and to plant seeds of a value system whereby all communities irrespective of religion would work together.

Taking Sabah as an example, he said that despite its multi-ethnic and multi-religious society, the people were relaxed and open to each other’s cultures.

“I feel that we will not have a problem and the proposed Race Relations Act is not necessary. What is needed is a value system and not a legal system,” he said.

(The Star) The MIC will not pressure the Government to release the five Hindraf leaders who are detained under the Internal Security Act (ISA) before Deepavali, said its president Datuk Seri S. Samy Vellu.

Stating that he would be meeting Home Minister Datuk Seri Syed Hamid Albar soon to discuss the matter, he said he could not specifically mention Deepavali as a timeframe but would leave the Government to make the decision.

“We will not decide on the time frame as that can only be decided by the Home Minister,” he said.

“We will just ask for an early release.”

“We do not want to unnecessarily intrude into his authority and work,” he told reporters after opening an MIC rebranding workshop here yesterday,

The MIC is hoping to get the Hindraf 5 " M. Manoharan, P. Uthayakumar, V. Ganabatirau, R. Kenghadharan and K. Vasanthakumar " released after being detained for organising a public rally last November.

Samy Vellu also ticked off those who chided the party for seeking publicity using the Hindraf issue, adding that MIC was a big and strong party.

On the issue of stateless Indians in the country, Samy Vellu said the party had prepared a detailed report on it to be presented to the Cabinet Committee on Indian Community Development, which is chaired by Deputy Prime Minister Datuk Seri Najib Tun Razak.

He said that the party, through the MIC-owned Social Strategic Foundation, had helped to obtain citizenship for 200 stateless Malaysians between 1999 and 2008.

“There are, however, still 1,000 unsolved cases,” he said when commenting on calls by the Human Rights Commission of Malaysia (Suhakam) for a special task force to look into the problem.

(Daily Express) Kota Kinabalu: Parti Keadilan Rakyat (PKR) will help a Malaysian woman, who lost her citizenship after losing her identity card, to seek redress from the court.

PKR Vice President, Datuk Dr Jeffrey Kitingan, said going to court would be the best action to resolve the matter and other issues related to identity card.

"We will assist the victim, Yong Hee Hua, 78, to take the matter to court," he said in a statement, Friday.

Jeffrey was referring to Yong, a Sino-Kadazan from Penampang, to whom the National Registration Department (NRD) had issued a permanent resident identity card as a replacement to her lost identity card.

He said the court action would help determine, among others, the qualification of citizenship under the Malaysia Agreement and the requirements for the issuance of identity card as well as the qualifications for natives as defined by State laws and the Federal Constitution.

"Yong is not the issue. Yong's rights represent Sabahans' rights. Injustice to her is an injustice to all Sabahans.

"Sabah leaders, irrespective of their political ideology, must stand together on this," he said.

Jeffrey said there had been too much talk with no action and too many problems but no solution to the issues concerning the Government's handling of Malaysian citizenship and dubious identity cards in Sabah.

KUALA LUMPUR: Former minister in the prime minister's department Datuk Zaid Ibrahim said true Malays need not be afraid, or feel lack of a sense of security.

"Take myself as an example. I'm a pure Malay, but I have a sense of security. I feel proud of my own race and culture."

However he said, the problem is that many people do not understand or respect history. Indians, Chinese and Malays have been participating in the nation-building process since a few centuries ago. The Indians used to work in the estates, while the Chinese and Indonesians have all made valuable contributions and sacrifices for the nation too. But we have all forgotten this.

Zaid Ibrahim quit his Cabinet post because he did not agree to the government's decision of detaining civilians under the Internal Security Act (ISA).

He said during an exclusive interview with Sin Chew Daily that the Chinese used to work here as miners, and they made great sacrifices during the confrontation with the communists, adding that we must understand history and what they have done for the nation.

"The rights of every individual must be respected and taken care of by everyone else."

"We are only talking about Malaysia as the 19th largest export country in the world, and that we have the twin towers and are a developed country... Do you think we have done all this ourselves? You're wrong. This achievement has been made after so many people from different ethnic groups have sacrificed for the nation.

"We are not talking about the positive things, but instead discussing how we should get worried because the Chinese have opened how many more new stores here.

"As a matter of fact, the first feeling we should have is not about worry. We should work harder to keep up with them instead.

"I've never been worried about the Chinese. In my legal firm, my partner is a Chinese, and we trust each other. Do you think I have built up my success all on my own?

"I'm not scared that the Chinese are smart, for I'm also very smart. I'm not scared that the Chinese are hard working, for I'm also very hard working. We have bad guys in every ethnic group, and you're cheated simply because you're not smart enough. We must educate young Malaysians to look at things from a positive perspective."

Zaid said certain people have kept on mentioning May 13 to blackmail the people. However he felt that given our current situation, this thing would never happen again.

"I am thinking, for a better future, all Malaysians should stand up and speak out bravely. The Chinese must defend the rights of the Malays, and the Malays must also defend the rights of the Chinese. Everyone must be properly taken care of here."

He felt that we should not rely on a single political party to take care of a particular community. It should be that the rights of every individual must be respected and taken care of by everyone else. (By HOU YALUN/Translated by DOMINIC LOH/Sin Chew Daily)

In 1998, we hosted the Commonwealth games in Malaysia. That was a very big event. For that purpose, the Bukit Jalil Stadium was built. It was built on land acquired from what was formerly known as the 'Bukit Jalil Rubber Estate'.

Now that we have a grandiose stadium called the Bukit Jalil Stadium, the Tamil School of Bukit Jalil Estate is housed in the former smoke house of that rubber estate!! I read this in an article in the press at around the time the Commonwealth games were due to be held; so this is no hearsay!

We built that stadium, but we couldn't afford to build that Tamil School a proper school? Just how much would it have cost to acquire part of the Estate land and build a school for those pupils? The many Tamil schools in the country are in this category because the government has been most reluctant to acquire estate land and build proper schools for these pupils, even after 51 years of Independance. And some still with blind loyalty to the MIC in the Barisan National government hoping that in the next 5 years they will begin to see the light at the end of the tunnel!

HINDRAF is trying to change all this, by taking 'the road less travelled'.

I have, in my years of Government service, seen this blatant discrimination for myself! When the Sekolah Kebangsaan in a small town receives new desks and chairs for the pupils, the old desks and chairs are given to the nearest Tamil School!

In Temerloh, a new 3 storey school building was constructed for the Sekolah Kebangsaan, and the old building that was vacated was given to the Tamil School, that was squatting on Railway land in Mentakab, Pahang!

The MIC and Samy have been rejected as "Irrelevant" by the COMMUNITY. The proof was in the March 8th Verdict!

Wither a place in the Malaysian Sun for the poorer Indians who have been displaced by Indonesian labour in the Estates in this Country?

Do you know that UiTM has an enrolment of about 105,000 students whereas our premier university, University of Malaya, has only a total enrolment of only 23,000 students? Furthermore, UiTM has more 1000 PhD holders in their Academic staff. Today, I saw on TV that UiTM has been offering an equine (horses related) course for some years now, complete with a paddock, stables and 15 horses!

There are plans to increase the total enrolment UiTM to 200,000 students within the next few years ... and yet they organised a huge protest when the MB of Selangor Tan Sri Khalid suggested that 10% of the students admitted to UiTM be non-Bumiputeras!!

So where do you think the Indians fit into this Malaysian Equation? To be offered approprite opportunities to acquire skills for Social Mobilty, to enhance their economic status? Or are they destined to remain 'pariahs' in their own Country? Destined to be fodder for the Police Detention Centers?